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Mitigation and Character References
When a defendant is arrested in Illinois, soon thereafter he/she will have a bond hearing. The Judge will consider many issues in deciding bail. Many of the factors are similar factors that a judge, later, will consider in deciding what sentence he/she will receive if there are plea negotiations, a plea of guilty or a sentence after trial. Friends and Family often want to help, and the following information is EXTREMELY IMPORTANT '''to get to the defense attorney as quickly as possible. Below, you will find the factors that are considered by Judges in deciding sentencing, re-sentencing, and sentencing of juveniles as adults. Please, read through the factors below. Then, provide the following to the Assistant Public Defender as soon as possible (you can also provide it via email –ask the Assistant Public Defender for their County email address): 1. Write the letter addressed to the judge: "Dear, Honorable Judge XXXX" '''(Only give the letter to the Assistant Public Defender, DO NOT give it to the Court.) 2. Tell how you know the Defendant. 3. Tell how long you have known the Defendant. 4. Provide your full name and contact information (phone number, email address, address). 5. Tell things about the Defendant that are positive..... For example: religious, community involved, helped people, hard-working, not violent, not gang involved, has positive goals, and so on. Any good things you can say about the Defendant, but make sure to give specific examples (For example: If you say he's religious... because I see him in church every Sunday, or he's kind, because I saw him help a lady with her groceries)! 6. Sign the letter with your full name, and address, telephone number or email. 7. DO NOT say things about the offense, like “he/she is not guilty” “he/she wasn’t there” etc –if you have information about the case like that, instead, tell the attorney, because you are a witness to the offense –not simply a character reference'.' 8. Provide copies of hospitalizations, school and work records and certificates or awards, military service, or any other records and positive things like photographs or videos you have. 9. If you can provide a place for the defendant to work, live, learn, or get counseling, please provide, with details, how you will make sure that he/she is employed or living safely. For example, please give information on the schedule (wake up to sleep) on the activities and monitoring that will be done to provide the Court with confidence that you are reliable in helping the defendant not be incarcerated. For example: here is our plan, here are our resources (friends/family/counselors/religious people/community members), here are pictures of where he/she will live, details about how he/she will get to work, school, court. When asking the Court to consider release, it is EXTREMELY important to have a detailed plan that is reliable and detailed. If you can provide this information, it is probably most important! The law requires that the information must be relevant and reliable, which is why details and personal information are required. Also, the information relates to only bond and possible sentencing, not whether the defendant committed the offense. This is why you should NOT discuss the alleged offense in the letters, but instead contact the attorney, with the information you know, as a possible witness. ''' '''HERE ARE THE FACTORS TO CONSIDER IN WRITING YOUR LETTER/CHARACTER REFERENCE: I. The following are statutory factors (required by law reasons) that the judge must consider to impose a lower sentence in Illinois: (730 ILCS 5/5-5-3.1) (from Ch. 38, par. 1005-5-3.1) Sec. 5-5-3.1. Factors in Mitigation. (a) The following grounds shall be accorded weight in favor of withholding or minimizing a sentence of imprisonment: (1) The defendant's criminal conduct neither caused nor threatened serious physical harm to another. (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious physical harm to another. (3) The defendant acted under a strong provocation. (4) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense. (5) The defendant's criminal conduct was induced or facilitated by someone other than the defendant. (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained. (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime. (8) The defendant's criminal conduct was the result of circumstances unlikely to recur. (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime. (10) The defendant is particularly likely to comply with the terms of a period of probation. (11) The imprisonment of the defendant would entail excessive hardship to his dependents. (12) The imprisonment of the defendant would endanger his or her medical condition. (13) The defendant was intellectually disabled as defined in Section 5-1-13 of this Code. (14) The defendant sought or obtained emergency medical assistance for an overdose and was convicted of a Class 3 felony or higher possession, manufacture, or delivery of a controlled, counterfeit, or look-alike substance or a controlled substance analog under the Illinois Controlled Substances Act or a Class 2 felony or higher possession, manufacture or delivery of methamphetamine under the Methamphetamine Control and Community Protection Act. (15) At the time of the offense, the defendant is or had been the victim of domestic violence and the effects of the domestic violence tended to excuse or justify the defendant's criminal conduct. As used in this paragraph (15), "domestic violence" means abuse as defined in Section 103 of the Illinois Domestic Violence Act of 1986. (b) If the court, having due regard for the character of the offender, the nature and circumstances of the offense and the public interest finds that a sentence of imprisonment is the most appropriate disposition of the offender, or where other provisions of this Code mandate the imprisonment of the offender, the grounds listed in paragraph (a) of this subsection shall be considered as factors in mitigation of the term imposed. (Source: P.A. 98-463, eff. 8-16-13; 99-384, eff. 1-1-16.) II. The following are non-statutory factors (required by various case law reasons) that the judge must or may consider to impose a lower sentence: Mercy A relevant factor for consideration at a death sentencing hearing, to be considered within the context of all factors in aggravation and mitigation. People v. Hope, 168 Ill. 2d 1, 46-47, 212 Ill. Dec. 909, 658 N.E.2d391 (1995); People v. Caffey, 205 Ill.2d 52; 792 N.E.2d 1163; 2001 Ill. LEXIS 1426; 275 Ill. Dec. 390 (Ill., 2001). Broken Home Eddings v. Oklahoma, 455 U.S. 104(1982); People v. Perez, 592 N.E.2d 984 (1992). “turbulent family history” (Eddings v. Oklahoma (1982), 455 U.S. 104, 71 L. Ed. 2d 1, 102 S. Ct. 869) Young when loved one died Lockett v. Ohio, 438 U.S. 536 (1978). Physically abused Eddings v. Oklahoma, 455 U.S. 104 (1982). Abused childhood (Penry v. Lynaugh (1989), 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934) Emotionally abused Eddings v. Oklahoma, 455 U.S. 104 (1982). Sexually abused People v. Phillips, 127 Ill.2d 499 (1989). Good deeds People v. Carlson, 79 Ill.2d 564 (1980). Alcoholic People v. Glecker, 82 Ill.2d 145 (1980); People v. Buggs, 112 Ill.2d 284 (1986); People v. Walcher, 42 Ill.2d 159 (1969). Drug Addiction Roberts v. Louisiana, 431 U.S. 633 (1977). Good Prison or Jail record Skipper v. South Carolina, 476 U.S. 1 (1986). Religion Zant v. Stephens, 456 U.S. 410 (1982). Mental Illness Zant v. Stephens, 456 U.S. 410 (1982). Mental Retardation Penry v. Lynaugh, 109 S.Ct. 2934 (1989); People v. Perez, 592 N.E.2d 984 (1992). Age Stanford v. Kentucky, 492 U.S. 361 (1989). Natural Life without parole is mandatory People v. Gacho, 122 Ill.2d 221 (1988). Kindness for others People v. Johnson, 128 Ill.2d 253 (1989). Work record People v. Johnson, 128 Ill.2d 253 (1989). Armed Service People v. Buggs, 112 Ill.2d 284 (1986). Combat Trauma Porter v. McCollum, 130 S.Ct. 447 (2009). School record (e.g., GED, HS) People v. Johnson, 128 Ill.2d 253 (1989); People v. Caballero, 126 Ill.2d 248 (1989); People v. Perez, 592 N.E.2d 984 (1992). Artistic '''People v. Guzman, 755 P.2d 917 (CA., 1988). '''Successful completion of probation or supervision '''People v. Johnson, 128 Ill.2d 253 (1989). '''Circumstances unlikely to recur People v. Johnson, 128 Ill.2d 253 (1989); People v. Buggs, 112 Ill.2d 284 (1986); People v. Carlson, 79 Ill.2d 564 (1980). Disproportionate to crime Enmund v. Florida, 458 U.S. 782 (1982); Cabana v. Bullock, 474 U.S. 376 (1986). Co-defendants did not get death People v. Glecker, 82 Ill.2d 145 (1980). Remorse People v. Johnson, 128 Ill.2d 253 (1989). No gang involvement People v. Johnson, 128 Ill.2d 253 (1989). Doormat personality People v. Glecker, 82 Ill.2d 145 (1980). Good record until recently People v. Caballero, 126 Ill.2d 248 (1989). Scientific achievement Jordan v. Mississippi, 518 So.2d 1186 (Miss., 1988). Defendant’s criminal conduct was induced or facilitated by another ''' Lockett v. Ohio, 438 U.S. 586 (1978). '''III. The following are statutory (Illinois) and non-statutory factors (required by the U.S. Supreme Court) that the judge must consider to impose a lower sentence for Juveniles (under 18 at the time of the offense): Miller v. Alabama, 132 S. Ct. 2455, 2468 (2012) & 730 ILCS 5/5-4.5-105. (Sentencing of Individuals under the age of 18 at the time of the commission of an offense). (a) On or after the effective date of this amendatory Act of the 99th General Assembly, when a person commits an offense and the person is under 18 years of age at the time of the commission of the offense, the court, at the sentencing hearing conducted under Section 5-4-1, shall consider the following additional factors in mitigation in determining the appropriate sentence: (1) the person's age, impetuosity, and level of maturity at the time of the offense, including the ability to consider risks and consequences of behavior, and the presence of cognitive or developmental disability, or both, if any; (2) whether the person was subjected to outside pressure, including peer pressure, familial pressure, or negative influences; (3) the person's family, home environment, educational and social background, including any history of parental neglect, physical abuse, or other childhood trauma; (4) the person's potential for rehabilitation or evidence of rehabilitation, or both; (5) the circumstances of the offense; (6) the person's degree of participation and specific role in the offense, including the level of planning by the defendant before the offense; (7) whether the person was able to meaningfully participate in his or her defense; (8) the person's prior juvenile or criminal history; and (9) any other information the court finds relevant and reliable, including an expression of remorse, if appropriate. However, if the person, on advice of counsel chooses not to make a statement, the court shall not consider a lack of an expression of remorse as an aggravating factor. IV. The following are things the judge may consider in RE-SENTENCING a defendant (for example an appellate court ruled that a NEW sentencing hearing must occur): Trial judges are not constitutionally precluded from imposing a new sentence, in the light of events subsequent to a first trial that may have thrown new light upon the defendant's life, health, habits, conduct, and mental and moral propensities. People v. Rivera, 346 Ill. App. 3d 398, 281 Ill. Dec. 261, 803 N.E.2d 882, 2004 Ill. App. LEXIS 14 (1 Dist. 2004).